The right to information
A group of 115 participants from 18 countries in the Americas were chosen to participate in a conference in Lima, Peru this spring (or fall, if you’re south of the equator), held to improve government and private organisation policies on open records. The Journal’s Brent Fuller was among the invitees. Second in a two-part series.
Heads up for business
Increasingly, the Carter Center’s review found that not only governments, but private companies that receive public funding or assistance, should be subject to some requirements for disclosure under FOI and open records laws.
This could become a crucial issue in the future, according to representatives at the conference, as more and more corporations and banks, particularly in the developed world receive government assistance and bailouts in difficult economic times.
“In light of the global economic meltdown, private organisations have become significant beneficiaries of public funds and so must increasingly be covered by targeted transparency requirements,” the Peru group’s findings read. “The practice of secrecy across a range of non-state and multinational actors, in particular systematically significant entries such as extractive, telecommunications, pharmaceutical and agro-chemical industries as well as the banking and financial sectors, may cause harm to fundamental human rights.”
Officials with the World Bank in Peru attended the conference and introduced proposals that they hoped would increase information provided about bank-sponsored projects in developing countries.
Financial regulators were also encouraged to comply with transparency principles, regardless of the jurisdiction they were operating in.
Political parties were also urged to enact and support better reporting of financial information, both in who their donors are and how much money is spent on political activities, regardless of whether they receive public funding.
The Carter Center group did not set specific guidelines in how countries, companies or political entities should create open records regimes. President Carter said it was something the diverse countries and territories in the Americas region should decide for themselves.
Is FOI a luxury?
One of the issues raised at the three-day conference in Peru is that legislation like Cayman’s Freedom of Information Law is sometimes placed on hold or given less priority by wealthy democracies concerned about security and financial stability.
“It’s quite clear that when under pressure, whether it be to deliver public services or under threat of terrorism…or when faced by a banking crisis…the holders of information tend to contract their enthusiasm for both the spirit and the letter of the law when it comes to transparency,” said Richard Calland of the Institute for Democracy in South Africa. “If we need to be secret in order to save jobs, to save the planet, or to prevent terrorists from killing people, shouldn’t we then accept a lower level of transparency?”
Suffolk University professor Alasdair Roberts, an internationally recognised open records’ advocate, told conference attendees that the choice isn’t necessarily a stark division between security and openness.
“I think there is a misunderstanding here about what advocates of transparency are asking for,” Roberts said. “No reasonable advocate of openness is asking for complete and unrestricted openness.”
However, there should be a fair balance between the interests of security and transparency, Roberts said.
“The national security bureaucracy is unlikely to do a fair balance of these competing interests on its own,” he told the conference.
Independent parties chosen to arbitrate these matters, such as ombudsmen or information commissioners, are often not trusted by security interests, Roberts said.
However, he argued that those charged with protecting the security of a country shouldn’t perceive transparency as a threat to their operations.
“If there is waste and corruption in the security sector then that is a threat to national security,” Roberts said. “If soldiers are not getting the supplies they need because of waste and corruption that undermines national security.”
“Transparency is a national security policy.”
US lobbyist Tom Susman, arguing the other side of the issue, pointed out that transparency laws don’t necessarily mean that corruption and waste will automatically be rooted out.
“Transparency itself doesn’t deliver accountability…it’s the use of transparency,” Susman said.
Susman noted that unaudited reports from the US government indicate the country spends some US $353 million on open records requests and freedom of information activities each year. The government recovers about $10 million of those costs annually, he said.
The largest cost for open records requests in the US come from agencies charged with handling security such as the FBI, CIA, Department of Homeland Security and the like.
“In those agencies, the cost per freedom of information request is $2,500 per request,” Susman said.
It was a concern open records advocates should consider, Calland said.
“Is transparency a luxury item?” he asked the conference. “Doesn’t it sometimes get in the way of more important considerations?”
Professor Roberts said the reason open records requests dealing with security are often so expensive is the delays imposed on them by the various bureaucracies.
“On Friday, I received a decision form the British information commissioner about a complaint that I filed with the office four years ago,” he said.
In fact, in a paper Roberts published in 2007 while he was at Syracuse University’s Maxwell School of Citizenship, he noted that he had stopped filing open records requests with the UK because there was essentially nothing he could do if those agencies chose to ignore him.
During a study of 15,000 open records requests made to the UK Ministry of Defence, Roberts said he discovered that even the bureaucrats themselves could be frustrated by the system.
“One of the descriptions (of the person making the request) was the British Foreign Minister,” he said. “You had one British government department using the Freedom of Information Act to get information from another. And it’s not the first time I’ve come across that.”